In Perry v. Schwarzenneger, the official Prop. 8 proponents filed a motion to realign California Attorney General as a plaintiff, even though the Attorney General has been characterized as a "nominal defendant." In their opposition, plaintiffs state,

The Attorney General should remain a defendant in order to preserve this Court's ability to award Plainiffs the full relief that they seek: an injunction immediately directing the chief legal officer of California - and every state official subject to his supervising authority - to cease enforcing Prop. 8. An injunction against the Attorney General is the most effective means of ensuring that any remedial order issued by this Court is immediately implemented on a statewide basis.

Thanks to California attorney Rick Xiao for alerting me to these filings.

The CEO and general counsel of Washington Archdiocese’s Catholic Charities told Council members that they would consider suing the District over the legislation, unless the Council amends it to include the same religious-liberty exemptions that Robin Fretwell Wilson and several other legal scholars have recommended. The Archdiocese representatives claimed the legislation fails to adequately protect religious organizations that provide public services. The legislation would bar a religious organization from doing what a Methodist Church did in New Jersey, when it would not rent its beach pavilion for a civil-union ceremony, even though the pavilion has been open to public use. The general counsel said that this "key provision that would appear to provide a religious exemption to religious organizations … gives with one hand and takes away [with the other]” - a statement that she appears to have lifted from yesterday's op-ed by Wilson. Councilmember David Catania, lead author of the bill, replied,

I find it offensive when you enter the public square and take public funds, yet you want to discriminate against people over employee benefits. We’ll just see you in court if you have a difference over this.

Law professor Nancy Polikoff asked for an amendment to suspend the sunset provision for phasing out of domestic partnerships. She elaborates on her position here.

In addition to fighting for a public vote on same-sex marriage in the District [the Marriage Initiative of 2009], the opponents say they will argue in court that the Federal Defense of Marriage Act banning gay marriage applies to the city. Several national conservative organizations plan to support the effort, guaranteeing that local opponents havethe money and publicity to wage a vigorous battle ... [T]elections board heard nearly five hours of testimony on the request by Stand4MarriageDC to put an initiative on the ballot next year stating that "only marriage between a man and a woman is valid and recognized in the District of Columbia." The elections board has to decide whether the initiative would violate the rights of the city's gay and lesbian residents. D.C. law prohibits a vote on a matter covered by the 1977 Human Rights Act, which outlaws discrimination against gays, lesbians and other minority groups.

Cleta Mitchell, an attorney representing Stand4MarriageDC, with which Jackson and the National Organization for Marriage are affiliated, and Austin R. Nimocks, a local attorney for the Alliance Defense Fund, an Arizona-based, "Christ-Centered" legal group, and Jackson got the ball rolling Monday morning ... Mitchell and Nimocks argued that the [Board of Elections and Ethics] in July helped close the door on their court appeal of the referendum effort by arguing that Jackson's group could later pursue the initiative process. What pursuing the process meant, exactly, seems open to interpretation. "You are legally precluded from switching your position now," Mitchell argued. "Your brief told the court we could pursue an initiative." Mitchell and Nimocks [also] argued that Dean vs. District of Columbia, in which the D.C. Court of Appeals decided in 1995 that D.C. law did not allow for same-sex marriage licenses, remained valid. However, that decision was based upon gender-specific language that no longer exists in D.C. laws, leaving Mitchell to speculate that if the [D.C. Human Rights Act] trumps D.C.'s marriage laws, the District would already be in violation of the HRA by not granting marriage equality.

See my earlier post on the prospect of a legal battle over the proposed initiative. Whatever one thinks of Mitchell's reasoning, it's curious to learn that ADF again purports to find authority in Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995), when its reliance on that case did not prevent dismissal of its recent lawsuit over a referendum against out-of-state recognition of same-sex marriage.

ADF attorneys Austin R. Nimocks and Tim Tracey appeared on the the Don Kroah Show to discuss the “DC Marriage Initiative of 2009″ and “The Religious Freedom and Civil Marriage Equality Union Act of 2009.” The MP3 runs just under 11 minutes.

The Rev. Walter E. Fauntroy, the District's first delegate to Congress [and a prominent civil rights activist], was the most prestigious person who testified against same-sex marriage. He spoke at the election board hearing about what he sees as the importance of allowing a vote; afterward I asked him about the substance of the issue ..."Every child needs to be bonded to a man and a woman," he said.

Wednesday, October 28, 2009

Tim Coco and Genesio “Junior” Oliveira, a binational gay couple, announced Monday they would challenge the 13-year-old law that bans the federal government from recognizing the marriages of gay and lesbian couples ... The pair married in Massachusetts in 2005, three years after they met. Because federal immigration law does not recognize the couple's marriage, Coco is not allowed to sponsor his husband for citizenship."

A pair of law professors at Michigan State University have launched an effort to legitimize the use of long-distance “proxy marriage” as a way for same-sex couples in states which prohibit gay marriage to legally wed.

Tuesday, October 27, 2009

The struggle highlights the difficulty for foreigners married to U.S. citizens to become U.S. residents. Because the government won't grant marriage-based visas to same sex couples, foreign spouses generally must rely on an asylum application, the general visa lottery, an employment-based green card or visa, or a student visa.

As readers of this site know, I have been monitoring a lawsuit in Alameda, a San Francisco Bay Area city. Plaintiff parents seek a judicial order requiring Alameda Unified School District (AUSD) to allow objecting parents to exempt their children from a curriculum about families with gay and lesbian parents. The District designed the program, called the Safe School Community Curriculum - Lesson 9, to prevent bullying against gay and lesbian students and against students of non-traditional families. The parents have expressed religious objections to participation by their children in Lesson 9. (For more on Lesson 9, see this post.)

Cal. Educ. Code Sec. 51240 allows for exemption of students from "health instruction" if parents notify public school officials that a school's "health instruction" violates their religious priniciples. Does Lesson 9 qualify as "health instruction" for the purpose of the law? The Balde plaintiffs maintain that it does; in their October 22nd answer, AUSD maintains that it doesn't. AUSD claims Lesson 9 is instead "part of anti-bullying and anti-harassment curriculum adopted pursant to the District's statutory duty to provide safe and non-discriminatory schools to all students." The California Student Safety and Violence Prevention Act of 2000 provides one of AUSD's "statuory duties." (I have already posted on the merits of AUSD's aniticipated position.)

The case interests me not just because I call Alameda home, but also because it has bearing on a proposed initiative to repeal California's constitutional ban on same-sex marriage. (For convenience, I will call that ban "Prop. 8.") The case shows that even in a state with a constitutional ban on same-sex marriage, opponents of same-sex marriage still allege that public schools "indoctrinate" students in lessons about non-traditional families, contrary to the religious values of their parents. They characterize "indoctrination" as a requirement that all public school students, without exception, participate in any program about such families, even if it is a social science lesson on different types of families throughout the world.

In fact, whether parents in California may exempt their children from curricula like Lesson 9 depends, not on whether the state bans same-sex marriage, but on other laws, including laws on state education, violence prevention, and anti-discrimination.

Following the strategy of last year's Yes on 8 campaign in California, Yes on 1 in Maine has frightened voters about alleged public school "indoctrination" unless they repeal Maine's marriage-equality law. Maine's attorney general recently issued an opinion that the state's marriage-equality law has no impact on public school instruction. Nevertheless, as the New Republic reports,

A recent Yes On 1 ad shows a nervous-looking school counselor discussing the children's book Who's In A Family?, which includes references to families with LGBT members and is part of a much-contested anti-bullying curriculum in Alameda County, California.

If the Court does not dismiss the Balde lawsuit, it may provide an opportunity to opponents of a future campaign to repeal Prop. 8. They could claim that without a ban on same-sex marriage, "indoctrination" programs will become more commonplace, even though other laws - not bans on same-sex marriage - affect whether public schools in California require children to learn about families with gay or lesbian parents.

-- It provides no meaningful protection against a loss of government benefits for refusing to recognize same-sex marriages.-- It provides no meaningful protection for individual dissenters (other than authorized celebrants) who have a religious objection to facilitating same-sex marriage ceremonies, such as caterers, musicians and photographers.ad_icon-- It provides no meaningful protection to religious organizations from private lawsuits under the city's anti-discrimination laws.

She also repeats the warning of her October 19th op-ed that without the recommended protections, "individuals and groups will face a cruel choice: their consciences or their livelihoods."

At the October 14th hearing to review the motion, Judge Walker asked Charles Cooper, attorney for the official Prop. 8 proponents, how gay marriage would harm married heterosexuals. Cooper conceded that he could identify no harm, a concession that appears to support the plaintiffs' constitutional challenge. Walker also gave Cooper a counterexample to proponents' claim that procreation provides an important reason why the state limit marriages to heterosexuals: Walker had recently married an elderly couple. Cooper acknowledge that Walker was not "missing something" about the "procreation" claim.

Nevertheless, the tea leaves do not auger well for plaintiffs and gay and lesbian couples who hope that the Perry case will overturn state bans on same-sex marriage. Debate continues over whether the case was appropriately timed, given the unlikelihood of a 5-4 decision by the U.S. Supreme Court to overturn these bans.

“We do think it's early to be doing federal litigation, but we do not disagree with the legal theory,” said Jennifer C. Pizer, senior counsel and marriage project director for Lambda Legal in Los Angeles. “There are different views about the timing of the suit.”

10/26/09 NY Times:Andrew Koppelman, a law professor at Northwestern and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” said [plaintiffs' attorney Theodore] Olson will have trouble attracting votes from the current justices. Asked how many justices Mr. Olson could count on, Professor Koppelman said, “I have trouble getting to one.”

See also this letter to the Times by Eva Wolfson, executive director of Freedom to Marry.

"This report analyzes the impact of unequal treatment of same-sex partners in the context of retirement plans and estimates the cost for employers of adopting a policy of equal treatment. The focus of this report is retirement income rather than health care provision for retirees and their families. Our goal is to address several key issues for same-sex couples as they plan for retirement. We find that same-sex couples face inequalities when it comes to their ability to accumulate wealth, plan for their futures, and pass on wealth."

A press release about the study is here. The New York Times recently tried to estimate the overall financial costs of discrimination against gay and lesbian couples, by comparing a hypothetical same-sex couple whose situation resembles that of a married, opposite-sex couple.

"One final set of legal rules that might justify marriage are those that protect the interests and expectations of both spouses upon dissolution of the marriage. Here, I think legal rules make the best case for positioning the formal, legal commitment that marriage entails over other less formal arrangements."

Friday, October 23, 2009

[10/27/09 update: Although he hasn't yet read the order, law professor Arthur Leonard discusses the denial of stay here.]

As readers of this site know, the official Prop. 8 proponents in the Perry case have tried to prevent plaintiffs from obtaining internal campaign communications by Yes on 8 during last year's election. Their effort has involved an appeal of Judge Walker's discovery order and a stay of the order pending appeal. On October 21st, the 9th Circuit Court issued an order to the appellants to show cause why their appeal should not be dismissed for lack of jursidiction. Not surprisingly, Judge Walker has denied the motion to stay discovery:

Proponents are unlikely to succeed on their appeal or mandamus petition because (1) the court of appeals lacksjurisdiction over the appeal and mandamus petition and (2) the appeal lacks merit.

I will include news articles and commentary as the news cycle and blogosphere catch up with today's development. Journalist Karen Ocamb elaborates on the context of animosity against gay and lesbian couples that she expects disclosed Yes on 8 communications to reveal.

Thanks to California attorney Rick Xiao for alerting me to the filing.

On October 26th, the D.C. Council's Committee on Public Safety & Judiciary will hold a hearing on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. According to the Washington Post, the hearing may be the largest that the Council has held. Over 260 individuals hope to testify, and the hearing is now expected to last two days. (The second day has been scheduled on November 2nd.) Also on October 26th, the D.C. Elections and Ethics Board will hold a hearing on whether to qualify the Marriage Initiative of 2009 for the ballot. The Alliance Defense Fund represents the "coalition" that filed the Initiative, according to ADF's press release about the Elections Board hearing.

In the Perry challenge to Prop. 8, the official Prop. 8 proponents filed a motion for summary judgment that Judge Vaugn Walker denied. They maintained that Baker v. Nelson, 409 U.S. 810 (1972), provides a binding precedent for deciding the merits of the case without a trial. They also maintained that no facts about gay and lesbians, or same-sex couples, have bearing on the appropriate standard of constitutional review, and that the state has a rational basis for limiting marriage to opposite-sex couples.

In this first of a two-part series, constitutional scholar Vikram Amar addresses arguments that U.S. Supreme Court's memorandum opinion in Baker represents binding precedent. He finds the arguments compelling, but in part two, will explain why he thinks a trial is necessary.

[Frederick Hertz], author of Making It Legal, A Guide To Same-Sex Marriage, Domestic Partnerships & Civil Unions said: “My advice to [O'Donnell and Carpenter] would be to try and work out things privately because there is a tremendous burden on same sex couples as the law is so unclear.

This paper develops a typology of conflict between same-sex marriage and religious freedom, and builds on that typology to analyze the issues raised by this new legislation. In particular, the paper defends constitutionally distinctive freedoms for clergy and houses of worship with respect to the celebration of marriages; analyzes and critiques proposals that would allow public employees and private vendors to assert conscientious objections to serving same-sex couples; and assesses the circumstances in which religious entities, including religious charities and educational institutions, should be obligated to serve same-sex families on equal terms.

On October 1st, Judge Walker ordered the official Prop. 8 proponents to disclose internal campaign communications to the Perry plaintiffs that concern Yes on 8's proposed or implemented messages to voters. On October 8th, the proponents filed notice of their 9th Circuit appeal of Walker's discovery order, and filed a motion to stay the discovery order pending the appeal.

Thanks to California attorney Rick Xiao for sharing the 9th Circuit order, and for provind his comment:

Signaling that the federal court of appeals may lack jurisdiction over Prop. 8 proponents' interlocutory appeal of Judge Walker's discovery order, the Ninth Circut has issued an Order to Show Cause requiring Prop. 8 proponents to explain why their appeal should not be dismissed for lack of jurisdiction. The Ninth Circuit's Order strongly suggests that Judge Walker would be well justified to deny Prop. 8 proponents' request for a stay of discovery pending the appeal.

MaineToday Media and WMTW Channel 8 are co-sponsoring a debate on same-sex marriage. Mary Bonauto, civil rights project director for Gay & Lesbian Advocates & Defenders, and Marc Mutty, chairman of Stand for Marriage Maine, will debate Question 1, a people’s veto attempt of the state’s new same-sex marriage law. The debate will air live on Channel 8 from 5 to 6 p.m. on Wednesday, Oct. 28. It also will be available online.

(Incidentally, the controversial NPR program at issue in the article can be found here.)

On October 26th, the D.C. Council's Committee on Public Safety & Judiciary will hold a hearing on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The bill provides for the phasing out of domestic partnerships, so that D.C. residents otherwise eligible to register new domestic partnerships could no longer do so after January 2011. Law professor Nancy Polikoff has joined other interested parties in calling for the removal of this provision:

Polikoff, who played a role in drafting the expanded version of the D.C. domestic partnership law, said she would call on the Council to remove the provision in [the] same-sex marriage bill phasing out domestic new domestic partnerships. She said that although [the] bill would most likely allow the city to continue to recognize domestic partnerships from other jurisdictions, the Council and the community should strongly consider retaining the domestic partnership option for both same-sex and opposite sex couples.

At 10 a.m. the same day [of the Council's hearing on the marriage-equality bill], the D.C. Board of Elections and Ethics is scheduled to hold its hearing on a proposed voter initiative to define marriage as the union of one man and one woman. The elections board is expected to reject the initiative as discrimination under the D.C. Human Rights Act, just as it ruled earlier this year in the case of a proposed referendum on the District's gay marriage recognition law. Bob King, a Ward 5 advisory neighborhood commissioner and a leader of the initiative effort, said the two hearings were "obviously" scheduled on the same day "to inconvenience our people." If the elections board rejects the initiative, King said, they will go to court. If the council adopts a same-sex marriage law, he added, they will take their case to Congress.

See my earlier post for background on the threat of legal action against the D.C. Elections Board.

Saturday, gay-rights supporters from all of the New England states except Maine joined Rhode Island activists in trying to advance the cause of marriage equality in the Ocean State. It is one of the most volatile issues the legislature has faced. In a brief interview on the State House steps, Kathy J. Kushnir, executive director of Marriage Equality Rhode Island, said she does not believe that the General Assembly will enact a gay-marriage law this year [see this failed legislation] but that she hopes it will at least pass legislation, currently pending, that would give same-sex partners the right to claim the bodies of and make funeral arrangements for their loved ones.

In this article, Wilson explains why Maine's Governor should ask the legislature to add the recommended exemptions to Maine's marriage-equality law. "Without explicit protection in Maine’s law," she claims, "many [engaged in the wedding business] will be faced with a cruel choice: your conscience or your livelihood."

Sunday, October 18, 2009

[W]hen a federal judge in San Francisco held a critical hearing last week in a suit by two same-sex couples challenging Proposition 8, they were represented by [Theodore] Olson and David Boies, his courtroom adversary in Bush vs. Gore. Before the hearing, Olson talked with Chronicle staff writer Bob Egelko about the case.

As Washington state is fighting to retain it’s Domestic Partnership law - the subject of a referendum on Nov. 3 – Congressmember Tammy Baldwin today testified how she and her partner of 13 years are deprived of the same federal benefits as her colleagues enjoy as married couples. Baldwin (WI-02) testified in front of the Senate Committee on Homeland Security and Governmental Affairs on behalf of the Domestic Partnership Benefits and Obligations Act, H.R. 2517.

As readers of this site may already know, Maine Education Commissioner Susan Gendron asked Attorney General Janet Mills to issue an opinion on whether the state's marriage-equality law would impact public school curricula. The Yes on 1 campaign has claimed that if Maine voters defeat Referendum 1 and allow the law to take effect, public school students will be "forced" to read books, like Who's In A Family, that introduce them to families with same-sex parents. The campaign has enlisted Schubert Flint Public Affairs to advertise this claim. Last year, this public affairs firm successfully promoted the same message on behalf of Yes on 8.

Attorney General Mills identified two reasons why the same-sex marriage law has no bearing on public school curricula:

1. "[F]or parents concerned about educational practices in Maine, safeguards for persons with religious beliefs are already provided in the law: The Maine Learning Results statute, 20-A M.R.S.A. sec. 6209, requires “accommodation provisions for instances where course content conflicts with sincerely held religious beliefs and practices of a student’s parent or guardian.”

2. Suppose Maine's public schools required students to read, or gave them opportunity to read, books about non-traditional familes, gay parents, or gay spouses. Or suppose the schools required students to read only books about traditional families, or made only such books available to students. Under either circumstance, parents with religious objections would not have an automatic entitlement, under First Amendment protection of religious expresssion (and 14th Amendment protection of parental autonomy), to exemption of their children, because the requirement, by itself, does not automatically establish "indoctrination." That is the implication of Parker v. Hurley, 514 F.3d 87 (1st Cir.2008), cert. den., 129 S.Ct. 56 (U.S.2008), as Miller understands the ruling. She discusses it in order to answer those who have relied on it to oppose Maine's same-sex marriage law.

The case concerned Massachusetts parents who, on religious grounds, objected to a school requirement that their child hear classroom readings of King and King, a book the Parker Court says "endorses gay marriage." It also concerned parents who had religious objections about the availability of Who's In A Family, a book that references same-sex parents among other non-traditional families, but does not reference same-sex marriages. All of the parents claimed that the schools were indoctrinating their children, in violation of the parents' First Amendment right to religious free speech, and in violation of their 14th Amendment guarantee of parental autonomy. That is, they claimed "that the state has put pressure on their children to endorse an affirmative view of gay marriage and has thus undercut the parents' efforts to inculcate their children with their own opposing religious views." The Parker Court ruled that the parents did not establish their claim of indoctrination, even if indoctrination rises to the level of "coercion" contrary to the First Amendment. (The Court did not consider whether indoctrination represents such coercion.)

Mills states that

The holding of the Parker case would apply to any parents who might not [for religious reasons] want their child to be exposed to certain viewpoints in a public school, whether it be discussions limited only to traditional heterosexual marriage; or depictions of adoption families, foster care and other nontraditional family situations; or discussions of differing theories of government, religion, philosophy, science or history. Parker simply states that there is no automatic federal judicial remedy for such objections to educational materials.

In my hometown of Alameda, California, parents with religious objections seek a court order that the local school district allow them to exempt their children from a curriculum designed to prevent bullying of gay students and students whose parents are gay. Of course, Prop. 8 clearly shows that a state-constitutional ban on same-sex marriage does not affect whether a school district will require children to read books such as And Tango Makes Three.

Judge Walker has denied the summary judgment motion by Prop. 8 proponents, the defendant-intervenors in the Perry case. A minute order is an oral order recorded in the minutes of the court's proceeding. It is not a formal ruling on the merits. Only a transcript of today's hearing will reveal why Judge Walker denied the summary judgment motion. In lieu of a transcript, readers must rely on media reports.)

In their summary judgment motion, defendant-intervenors argued that a 1972 Supreme Court order provided decisive precedent for upholding same-sex marriage bans; that the only applicable standard of constitutional review involves whether state legislatures have a rational basis for such bans; and that Prop. 8 satisfies this standard. The Recorder reports on how Judge Walker addressed each of these arguments to rule against the motion.

Cal Law Legal Pad is affiliated with The Recorder, a Northern California legal newspaper. Legal Pad reports the following exchange between Walker and Charles Cooper, who represents the Prop. 8 proponents:

Attorney Charles Cooper had tried to convince Walker that this case must fail because the U.S. Supreme Court already affirmed a same sex marriage ban in Minnesota in the early 1970's. "We can't put very much stock in that case, can we?" Walker asked Cooper. The ruling in Baker v. Nelson had not been a considered opinion, Walker said, but rather issued without comment. Plus it was old, he said, and the facts weren't the same.

Judge Walker rejected the motion, according to various press reports, because he found that this case presents issues not necessarily decided in Baker, and because he does not agree with Intervenors that rational basis review is necessarily the correct constitutional standard to apply. Walker wants a trial for fact-finding on some of the factors underlying the choice of which level of judicial review to use, and also to evaluate the weight and correctness of the purposes being articulated by the Intervenors. (The Intervenors are the only parties defending Prop 8, as the named government defendants have refused to do so.)

For her brief comment, Professor Hunter relies on Shannon Minter, legal director of the National Center for Lesbian Rights, who presumably attended the hearing or knows an attendee. Hunter also links to a San Francisco Chronicle article.

Walker stated that neither Romer v. Evans nor Lawrence v. Texas foreclosed what level of scrutiny to apply in this case as to the claimed sexual orientation discrimination, but found instead that the determination requires a full factual record. He noted that the Proposition 8 proponents’ failure to address the first two Carolene Products [304 U.S. 144, n.4 (1938)] factors impairs their argument against strict scrutiny and, thus, that the prime issues for trial are “immutability” & “political powerlessness.”

Walker determined that the merits of the case warrant its going to trial early next year. He said from the bench that two key arguments in the case – whether Prop 8 is "neutral or discriminates on the basis of gender" and whether the state has a compelling interest to define marriage as a union between a man and a woman in order to foster procreation – are compelling legal questions that can only be answered at trial.

[Attorney] David Link from the Independent Gay Forum offers his analysis of Judge Walker’s decision in the Perry v Schwarzenegger case ... "The question for a court shouldn’t be whether you can change your sexual orientation, or gender or race; the question is whether government should make you, in order to obtain your equality. And the right (and only) answer to that question is a resounding "No,” just as it should be for gender or race or religion.

Tuesday, October 13, 2009

Today the New York Court of Appeals heard oral arguments in two cases about whether the state can recognize out-of-state, same-sex marriages. Alliance Defense Fund attorney Brian Raum tried to argue that the state should not recognize such marriages, just as the state has exceptions for incestuous and polygamous marriages. But Raum conceded in questioning that the state Assembly has already passed marriage-equality legislation, and that state law protects gays and lesbians from some forms of discrimination. Moreover,

"[b]road recognition of out-of-state marriages is the law here," Judge SusanRead said during Tuesday's hearing. "It's been the law for a long time."

According to the Times' account of the oral argument, the judges are wrestling with whether to issue a narrow ruling that applies just to the two cases at issue, or a broader ruling that "could force (!) businesses and local governments in the state to recognize out-of-state marriages between same-sex couples."

The New York Court of Appeals heard oral arguments on Tuesday, October 13, in two cases that might provide a vehicle for the court to weigh in on the question whether same-sex couples who marry elsewhere are entitled to have their marriages recognized in New York. But judging by the questioning from the bench, it appeared that many members of the court were looking for a way to give a narrow ruling that would not necessarily settle that question, pressingly aware that the State Senate might obviate their need to make a controversial ruling by voting for the marriage equality bill before the end of the year.

On October 1st, Judge Walker ordered the official Prop. 8 proponents to disclose internal campaign communications to the Perry plaintiffs that concern Yes on 8's proposed or implemented messages to voters. On October 8th, Charles Cooper filed a motion to stay the discovery order pending an appeal. Among other claims, Cooper alleged a First Amendment privilege in the communications. Today Theodore Olson and Therese Stewart filed an opposition to this motion. Here are excerpts:

The Ninth Circuit has concluded that a claim of First Amendment privilege must be supported by “objective and articulable facts which go beyond broad allegations or subjective fears.” Dole v.SEIU, AFL-CIO, Local 280, 950 F.2d 1456, 1460 (1991) ... [Defendant-intervenors'] “[b]are allegations of possible first amendment violations,” McLaughlin v. Service Employees Union, AFL-CIO, 880 F.2d 170, 175 (9th Cir. 1989), are generally insufficient to justify a claim of privilege and are particularly wanting in this context, where (1) the “associational bond” among the Defendant-Intervenors, their campaign consultants and the Yes on 8 campaign is a matter of public knowledge, (2) key participants in the “Yes on 8” campaign have already, and voluntarily, chosen to describe in detail, and in the media, their campaign strategy for getting Prop. 8 passed, (3) Plaintiffs are not seeking any list of rank-and-file members or donors, and (4) Plaintiffs have offered to entertain any reasonable protective order to ensure that any person whose associational connection to the Yes on 8 campaign is unknown to the public remains so....

In any event, Defendant-Intervenors’ First Amendment rights are not the only ones, or even the principal ones, at stake in this case. The public has an equally forceful interest in vindicating Plaintiffs’ fundamental right to marry and this Court has recognized already that given the “serious questions [] raised in these proceedings,” the state and its citizens have an interest inseeing those rights adjudicated on a full record.

Thanks to Rick Xiao for alerting me to the latest filing in the discovery dispute.

New York's highest court, which three years ago ruled that same-sex couples do not have a constitutional right to marry in the state, will get an opportunity to approach the issue from a different angle next week: Whether state and local governments can recognize same-sex marriages solemnized in jurisdictions where such unions are legal.

ALBANY, N.Y. — Alliance Defense Fund Senior Counsel Brian Raum will be available for media interviews Tuesday following his arguments before New York’s highest court in Lewis v. New York State Department of Civil Service and Godfrey v. Spano. ADF attorneys appealed both lawsuits, arguing that state and local officials have attempted to recognize out-of-state same-sex “marriages,” contrary to state law.

Monday, October 12, 2009

Among critical comments on California's initiative process, Chief Justice Ronald George observed in a speech

that in November, voters passed initiatives to regulate the confinement of fowl in coops and passed Proposition 8, which overturned part of a California Supreme Court ruling that gave gays and lesbians the right to marry. "Chickens gained valuable rights in California on the same day that gay men and lesbians lost them," George said.

California attorney and blog contributor Rick Xiao offers this comment on the new law:

Today California Governor Arnold Schwarzenegger has signed into law significant same-sex marriage legislation which could have a direct impact on the pending challenge to Prop. 8 in federal court.

California now recognizes same-sex marriages that were solemnized in other states during the period when same-sex marriage was legalized in California prior to Prop. 8. Moreover, the new legislation confers upon post-Prop. 8 out-of-state same-sex marriages the same rights and obligations as heterosexual marriages, except that the state will not call them “marriage.”

California’s multi-tier, complex, and perplexing marriage regime lends credence to plaintiffs’ contention that Prop. 8 is “uniquely irrational.” After all, how does Prop. 8 logically advance any government interest when the state has previously honored its own same-sex marriages and now further recognizes those performed in other states before Prop. 8?

Notably, Prop. 8 proponents have repeatedly intoned in court papers that the existing 18,000 same-sex marriages are recognized in California as a result of judicial activism that has ignored the will of the people. This will-of-the-people argument rings hollow now that California’s recognition of pre-Prop. 8, out-of-state same-sex marriages has been done through the democratic, legislative process.

Gay marriage law is already hard to understand because different states plus the federal government have differing laws covering same sex relationships. California's law now means that same sex couples may not even be governed the same within a single state.

On October 14th, Judge Vaugn Walker will hear arguments over a motion by official Prop. 8 proponents for summary judgment in the Perry case. Constitutional scholar Vikram Amar said that Walker will have to determine whether Baker v. Nelson 409 U.S. 810 (1972) "ties his hands" -a key issue that California attorney Rick Xaio discussed at this site. The Baker Court let stand, without comment, the Minnesota Supreme Court's ruling that the state's marriage law does not violate the 14th Amendment by excluding same-sex couples. Law professor Marc Spindelman said the Baker ruling represents

a tough question. Unquestionably the Supreme Court has moved on the question of lesbian and gay rights since the time Baker was decided.

Friday, October 9, 2009

Ike Vanden Eykel, the incoming president of the Dallas Bar Association, told the Star Telegram that Judge Tena Toye Callahan

always takes a careful look at the law and the facts of any case before she makes any ruling. She is someone we know we can call on for a tough assignment, and there is no doubt that it will be handled and done correctly.

[T]he [marriage-equality] measure, whose main author was Councilman David Catania, still faces obstacles. Last month, opponents of same-sex marriage filed a petition for a referendum on the subject. If approved by the Board of Elections and Ethics, the initiative would give city residents the chance to vote next year on whether to legalize same-sex marriage.

California attorney Rick Xiao offers the following comment on this filing in the Perry case:

In an effort to resist Judge Walker’s discovery order for production of internal communications concerning their campaign strategy, Prop. 8 proponents have appealed the order to the Ninth Circuit. Simultaneously, they also filed a motion to stay discovery pending the appeal. The motion to stay is set for a hearing on January 7, 2010 — just days before trial. Given the clear indication that Judge Walker is proceeding expeditiously to trial, these latest filings suggest that Prop. 8 proponents are pursuing a new strategy focusing more on procedural tactics which could limit discovery available to plaintiffs and pose obstacles to the fast-track trial scheduling.

A dispute about a discovery demand in the pending federal lawsuit challenging the constitutionality of California Proposition 8 may delay the trial in the case, which has been scheduled to begin in January. The attorneys for the Proposition 8 Official Proponents are asking U.S. District Judge Vaughn R. Walker to stay discovery while they ask the U.S. Court of Appeals for the 9th Circuit to reverse Walker’s October 1 ruling that they have no First Amendment right to refuse to turn over internal communications from the Proposition 8 referendum campaign.

Thursday, October 8, 2009

On June 15th, the Board of Elections and Ethics for the District of Columbia issued a ruling on a proposed referendum that would have let District voters decide whether to repeal the Jury and Marriage Amendment Act of 2009 (JMAA). The JMA confers official District recognition of out-of-state, same-sex marriages. The Board ruled that the referendum could not qualify for the ballot because it violated the District's Human Rights. The JMAA

effectively adds discrimination against same-sex couples who have entered into valid marriages in other jurisdictions to the list of acts of discrimination prohibited under the [Human Rights Act] ... [T]he Referendum’s Proposers would, in contravention of the [Human Rights Act], strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere.

Two days later, the Alliance Defense Fund (ADF) filed a lawsuit on behalf of the referendum's proponents, who asked a Superior Court judge to order that the referendum be placed on the ballot. In July, the judge dismissed the lawsuit, and the JMAA took effect.

By September, Council Member David Catania was expected to introduce marriage-equality legislation. On September 1st, proponents of the JMAA referendum filed a proposed initiative with the Board, the D.C. Marriage Initiative of 2009, which would amend the District code to read:

Only marriage between a man and a woman is recognized or valid in the District of Columbia.

I had thought dismissal of their lawsuit in July over the JMA referendum would deter Marriage Initiatve proponents from testing whether their proposed Initiative violates the District's Human Rights Act. Now I find that I am wrong. Brian Brown, Executive Director of the National Organization for Marriage (NOM), yesterday told a local news host that the Initiative doesn't violate the Human Rights Act, apparently because a proposal of a law that the Human Rights Act might prohibit can't violate the Act until it is adopted. Coincidentally, NOM recently moved to the District. Brown says that District voters must not be disenfranchised with respect to an opportunity to vote on the Marriage Initiative.

Given the introduction of marriage-equality legislation, the Board will probably not find reason to delay a hearing on the proposed Initiative, and the Board will almost certainly rule that it violates the Human Rights Act. We can reasonably expect ADF to file another lawsuit to reverse the Board's action, perhaps just as voters in Maine and Washington go to the polls to decide referenda in those states on same-sex marriage and civil unions, respectively.

Today, David Catania and other members of the District's Council introduced marriage equality legislation. The proposed language includes more than just recognition of First Amendment protection of those who decline to solemnize same-sex marriages for religious reasons. Here is the clause that especially interests me. My red highlighting provides basis for a comparsion.

Sec.1283a.(e):"Notwithstanding any other provision of law, a religious organization, association or society, or a nonprofit organization which is operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, facilities or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage, that is a violation of the entity's religious beliefs, unless the entity makes such services, accommodations, or goods available for purchase, rental, or use to members of the general public. Any refusal to provide services, accommodations, facilities or goods in accodance with this section shall not create any civil claim or cause of action, or result in any District action to penalize or withhold benefits from such entity, unless such entity makes such services, accommodations, facilities, or goods available for purchase, rental, or use to members of the general public.

Compare this language an exemption provision of New Hampshire's marriage equality law, N.H. Public Act 09-317, Sec.61:2. I use red highlighting to underscore the differences:

III. Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of his or her religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.

This comparison supports three observations. First, the proposed D.C. law would not extend protection to individuals who otherwise provide wedding services, but deny them same-sex couples for religious reaons. Second, the D.C. legislation would leave undefined the scope of the "promotion of marriage," so that a court would have to interpret whether, for example, a religious university violates the law by denying housing to a same-sex couple. (Such scenarios seem unlikely to arise often.) Finally, the legislation would bar a religious organization from doing what a Methodist Church did in New Jersey, when it would not rent its beach pavilion for a civil-union ceremony, even though it had rented the property for secular uses. See what law professor John Culhanehas said in favor of just this type of restriction.

Charles Cooper, of Cooper & Kirk, represents the official Prop. 8 proponents in the Perry case. According to The Recorder, he is a close friend of plaintiffs' attorney Theodore Olson. Both were colleagues in Reagen's Justice Department.

The Recorder portrays Cooper as "a courtly D.C. insider to - calmly - make [the] case" of Prop. 8 supporters." As evidence, the newspaper describes his conduct during an August 19th hearing, when Judge Vaugn Walker considered and rejected a motion to intervene by proposed defendant Campaign for California Families (CCF). Representing CCF, Liberty Counsel attorney Rena Lindevaldsen claimed that "individuals should be entitled to treatment to change [their] sexual orientation," a position that Cooper did not defend.

TheRecorder states that Cooper will likely have as much influence as Olson on the case.

While Kate Kendell, executive director of the National Center for Lesbian Rights, finds the views of Prop. 8 supporters offensive, she told The Recorder:

You can't continue to make appeals, based on what is widely regarded as nothing but pure prejudice, and expect to win. So, faced with that sense of the circumstances, and that changed landscape, you have two choices: either abandon your arguments, understand the error of your ways and support full equality, or you attempt to recruit validators whose views are more palatable and who are not seen as so extreme.

Monday, October 5, 2009

Turns out Walker wanted to float the idea of broadcasting the January trial [in the Perry case], but not just to an overflow room in the federal building. He wanted to know how the lawyers felt about making the trial available for broadcast on a television station, according to a letter filed in the case.

In Varnum v. Brien, 763 N.W.2d 862 (Ia. 2009), the Iowa Supreme Court ruled that the state's statutory ban on same-sex marriage violates the equal protection clause of the Iowa Constitution. The Iowa state legislature may consider the examples of New England states when it develops legislation to implement the Court's ruling. Several legal scholars on religious liberty sent letters to state governors or legislators in New Hampshire, Connecticut and New York, recommending religious-liberty exemptions in marriage-equality legislation. Law professor John Culhane responded to these recommendations in a four-part series at this site.

In this article, constitutional scholar Ian Bartrum discusses the latest letter by the group of legal scholars to Iowa Governor Chet Culver. Bartrum questions the analogy between religious discrimination based on race and religious discrimination based on sexual orientation. He finds that the "same-sex marriage issue" - or rather the larger issue of prohibiting discrimination against gays and lesbians- resembles the "controversy over abortion." As a result of that controversy, laws exempt hospitals from the Civil Rights Act if their religious affiliation makes abortion objectionable. He favors "legislative minimalism" rather than a law on same-sex marriage whose exemptions anticipate every form of conflict between religious liberty and same-sex marriage:

Courts are well-equipped to craft and evaluate these kinds of balancing tests governing constitutional rights [such as the sincerity of religous objections], and thus the legislature should leave the question of private religious exemptions for later judicial interpretation.

J.B., who seeks to divorce his gay spouse, discussed reaction to the ruling in his case that Texas law banning same-sex marriage violates the 14th Amendment. If his had been a "test case," interested parties could have "come on board" at any time, but far from being the "poster boy" in a larger legal battle, he says that he has received the "most negative feedback" from the "legal gay and lesbian community."

“If anybody else had wanted to bring their cause to the table, they could have been there,” he said. “You know, you can’t just jump on when you want to and claim your stake.”

Legal Pad provides yesterday's discovery order by Judge Vaugn Walker in the Perry case. (Thanks to this site's co-author Rick for advance notice of the order.) Walker has ordered defendant-intervenors to disclose contested communications among political consultants, directors, and managers of the Yes on 8 campaign. Defendant-intervenors must also produce communications about the campaign's proposed or implemented messages to voters.

As has been widely reported, the Yes on 1 campaign in Maine has engaged Schubert Flint Public Affairs, which was a chief consultant and strategist for Yes on 8. Based on a magazine article by the firm's principals, Judge Walker ruled that the firm's campaign communications do not warrant First Amendment protection:

If harm is threatened from disclosure of proponents’ campaign strategy, it seems likely to have been realized by the candid description of the Prop 8 campaign’s strategy already disseminated by [principals Frank] Schubert and [Jeff] Flint.

Discovery just might turn up explosive, or at least sensational, revelations about development of strategy by the firm and organizers of the Yes on 8 campaign, with potential ramifications for the campaigns in Maine over Question 1. As journalist Karen Ocamb observes, "Walker ... hinted that he might limit the public’s access to the documents."

I would expect defendant-intervenors to demand the same scope of discovery from plaintiffs with respect to the No on 8 campaign.

What is the cost of being a second-class citizen? According to the New York Times, anywhere between $41,196 and $467,562. Those are the best- and worst-case extra costs that accrue to same-sex couples over a lifetime. The Times created a hypothetical same-sex couple whose situation would be similar to that of a heterosexual couple, and charted the additional costs they would bear based on varying income and other circumstances.

Law professor Nancy Polikoffsays that the NY Times reporters tell only one part of the story, because they overlook benefits to all couples, married or not, that would result if marriage were no longer accorded special legal status.

For other comments, see this post by attorney Gideon Alper, and this one by Andrew Sullivan.

Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.

State trial court decisions are interesting in themselves and may affect the rights of the parties if not reversed on appeal, but otherwise have no precedential value. Only appellate courts can issue decisions that are binding on other courts, and only the highest court of a state can issue decisions binding on all the courts of the state, so it will be a while before we can know how important this ruling is.

District Judge Tena Callahan issued her ruling in a state court in Dallas yesterday to strike down the Texas marriage amendment, as well as the state DOMA, stating that the state ban on same-sex “marriage” violates the federal constitutional right to equal protection under the Fourteenth Amendment to the U.S. Constitution. This ruling marks the first time that a state court judge has struck down marriage laws based on the U. S. Constitution ... ADF attorneys, who are expected to file a brief in opposition to Callahan’s ruling, are also defending a similar attack on marriage in Oklahoma, where voters approved their state amendment defining marriage as between one man and one woman by 76 percent in 2004. In O’Darling v. O’Darling, a “divorce” is being sought by two women allegedly “married” in Canada. That matter is currently pending before the Oklahoma Supreme Court.

Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.